David Vergeront, Chief Legal Counsel, Office of State
Employment Relations, 101 East Wilson Street,
4th Floor, P.O. Box 7855, Madison, Wisconsin 53707-7855, appearing on behalf of the
State of
Wisconsin, University of Wisconsin-Madison.

ORDER ON REVIEW OF EXAMINER'S
DECISION

On August 24, 2004, Commission Examiner Coleen A. Burns issued Findings of
Fact, Conclusions
of Law and Order in the above-captioned matter, concluding that the Respondent State of
Wisconsin,
University of Wisconsin-Madison (UW) had not violated the State Employment Labor
Relations Act
(SELRA) by deciding, towards the latter part of April 2002, not to hire Dinesh Somalinga
(Somalinga) for
a position at the Space Science & Engineering Center that would have been within the
bargaining unit
represented by the Complainant Teaching Assistants Association, Local 3220,
AFT-Wisconsin (TAA).
The Examiner dismissed all allegations in the complaint.

On September 13, 2004, the TAA filed a timely petition seeking Commission review
of the
Examiner's decision pursuant to Secs. 111.07(5) and 111.84(4), Stats. Both parties filed
written argument,
the last of which was received by the Commission on December 22, 2004.

For the reasons set forth in our Memorandum, below, we affirm the Examiner's
conclusion that the
Respondent did not violate SELRA by failing to hire Somalinga.

Dec. No. 30534-B

Page 2

Dec. No. 30534-B

ORDER

A. The Examiner's Findings of Fact 1
through 7 are affirmed.

B. The Examiner's Finding of Fact 8 is affirmed as modified
below:

8. Paulos and Short's decision to not hire Somalinga
into the student
hourly position offered in the April 23rd email was in response to, and
reliance upon, directives contained in Loy's email of April 25, 2002. The
directives contained in Loy's email of April 25, 2002 are consistent with
Rothstein's April 25, 2002 directives to Loy. Paulos and Short were the
SSEC representatives responsible for the decision to not hire Somalinga
into the positions offered in Short's April 23rd email. Paulos and Short
were the SSEC representatives responsible for the decision to not post a
project assistant position at the SSEC.

C. The Examiner's Conclusions of Law 1 through 5 are affirmed.

D. The Examiner's Conclusion of Law 6 is affirmed as modified
below:

6. Respondent representatives Michael Rothstein and
Sally Loy were aware
of the lawful concerted activity referenced in Conclusions of Law 4 and 5.
Respondent representatives Robert Morse, Robert Paulos, and John Short were
not aware of the lawful concerted activity referenced in Conclusions of Law 4 and
5.

E. The Examiner's Conclusions of Law 7 and 8 are affirmed.

F. The Examiner's Conclusion of Law 9 is set aside.

G. The Examiner's Conclusion of Law 10 is renumbered
Conclusion of Law 9 and is
affirmed.

H. The Examiner's Order is affirmed.

Given under our hands and seal at the City of Madison, Wisconsin, this 4th day of
February, 2005.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith Neumann, Chair

Paul Gordon,
Commissioner

Commissioner Susan J. M. Bauman did not participate.

Page 3

Dec. No. 30534-B

State of Wisconsin, University of
Wisconsin-Madison

MEMORANDUM ACCOMPANYING
ORDER

Summary of the Facts

As noted in our Order, above, we have generally affirmed the Examiner's Findings
of
Fact, the
most salient of which are summarized as follows.

The TAA represents a bargaining unit of graduate students employed by the
UW-Madison as
teaching assistants and/or project assistants. In early March 2002, graduate student and
bargaining unit
member Dinesh Somalinga approached Professor Robert Morse of the UW Department of
Physics to
inquire about employment opportunities. Morse, having no positions to offer Somalinga
within the Physics
Department, suggested Somalinga check with the School of Engineering, Space Science
& Engineer Center
(SSEC), and also offered to recommend Somalinga to others who might have had a position.
At the time,
Morse was involved with one of the SSEC's projects, the "IceCube Project," a
multi-university
collaboration tasked with drilling into the South Pole ice cap and inserting instrumentation for
a neutrino
telescope. On March 4, 2002, Morse sent an e-mail to certain individuals associated with
the IceCube
Project, describing Somalinga's background and training and suggesting that the Project
consider him for
any appropriate employment opportunities.

Robert Paulos was the Project Manager for IceCube and one of the recipients of
Morse's e-mail.
On April 2, 2002, Somalinga telephoned Paulos and later that day also e-mailed him,
informing him that
he (Somalinga) was looking for additional project assistant hours in order to qualify for a
tuition waiver and
referring Paulos to Morse's earlier e-mail. On April 20, Somalinga visited Paulos in person
to discuss some
possible project assistant hours. At first Paulos indicated the SSEC was not looking for
anyone, but then
noticed that Somalinga's resume indicated familiarity with Auto-CAD, an engineering
software program
that students as well as Project contractors were using already but which would be needed
increasingly in
the immediate future. Paulos then introduced Somalinga to John Short, who was in charge
of the Project's
Auto-CAD work and, after a brief discussion, Short told Somalinga that he would be
receiving an offer.
Later that day, Short met with Paulos about hiring Somalinga, and Paulos suggested that
Somalinga be
hired initially as a student hourly worker in order to get him on board as quickly as possible.
Acting on
advice from the Center's personnel department, Short sent an e-mail dated April 23, 2002,
offering
Somalinga a position at 50% student hourly, beginning on April 29, moving to a full-time
project assistant
position starting May 27, and moving to a 50% project assistant position in the fall. Short's
e-mail asked
Somalinga to contact the payroll office (Sally Loy) for details. At the time, Short was
essentially unfamiliar
with the hiring process in general and the contractual requirements relating to TAA positions.

Over the next three days, discussions occurred among Somalinga, the TAA, and UW
officials with
the ultimate result that the April 23 position offer was withdrawn by April 26. After

Page 4

Dec. No. 30534-B

receiving Short's e-mail, Somalinga, who needed project position hours in order to
obtain tuition remission,
had unsuccessfully approached first Loy and then Short to change the initial position type
from student
hourly to project assistant, then telephoned the TAA about whether a position properly could
be classified
as student hourly if the work was the same as project assistant work. The TAA thought that
would violate
the contract and contacted Loy to let her know. Loy disagreed and the TAA then contacted
UW labor
relations counsel Michael Rothstein, who in turn advised Loy that she would have to post the
position as
a project assistant. The TAA also passed along to Somalinga the information that the
position would have
to be posted for five to ten days, from which Somalinga inferred that, while there could be
other applicants,
the position would be filled prior to the end of the term. On April 25, Loy e-mailed Short
and Paulos to
advise them that the position could not be filled as a student hourly and would have to be
posted. Loy's
e-mail indicated the information came from the UW personnel office, but also indicated that
"we are
following the union contract and posting the position first." That same day, Loy spoke with
Somalinga to
advise him that she (Loy) was waiting for a position description from Short in order to post
the job.
Somalinga, also the same day, telephoned Short, who said he was too busy to work on a
position
description immediately. The next day, April 26, Short and Paulos discussed the information
they had
received from Loy and decided that it would be more expeditious to continue outsourcing the
Auto-CAD
work to the laboratory that had been doing some of it, as to do so would take only a phone
call, rather than
to spend time preparing a position description, waiting for the position to be posted and then
interviewing
applicants. Short then e-mailed Loy of the decision, stating "we realize we can further
utilize outside
contractors to maintain schedule." Later that same day, April 26, when Somalinga again
telephoned Short
about the position description, Short informed Somalinga that the position was withdrawn and
the Project
would subcontract instead. In the meantime, on April 25, Somalinga had e-mailed Short to
accept the
position as offered in Short's April 23 e-mail.

Somalinga asked Morse why the position had been cancelled and Morse said he would
get in touch
with the SSEC and let Somalinga know the results. On May 13, Somalinga had another
conversation with
Morse, in which Morse indicated that the position may have been withdrawn because
Somalinga "pushed
too hard" or came with "too much overhead." Somalinga inferred that Morse had spoken
with Short or
Paulos but did not ask Morse for further explanation. Morse in fact had not contacted Short
or Paulos and
had no actual knowledge about the reasons the position had been withdrawn. Morse's
comments to
Somalinga were based upon Morse's view that Somalinga had seemed "pushy" with Morse
and that Morse
believed Somalinga's desire for a tuition remission at such a late point in the semester could
be viewed as
a burden on the Project's budget, since the Project would have to reimburse the University
for the tuition.
1/

1/ The TAA challenges certain of the
Examiner's factual conclusions regarding Morse's, Short's, and
Paulos' knowledge of Somalinga's and the TAA's involvement in the situation and whether
that involvement
contributed to their decision to withdraw the job offer. We discuss these issues in the
Memorandum that
follows our Order.

Page 5

Dec. No. 30534-B

Somalinga brought the situation to the attention of the TAA, who e-mailed a
memorandum to
Rothstein on May 28, 2002 stating that the circumstances and timing strongly suggested that
"the
withdrawal of the job offer was in response to our attempts to get the position reclassified
and enforce the
TAA contract with respect to advertising." By e-mail dated June 5, 2002, Rothstein
responded that his
investigation revealed that the SSEC had "decided to contract out the work rather than hire
their own
employee." On October 9, 2002, the TAA filed its Complaint in the instant matter.

Discussion

This case is troublesome on its surface. No matter how the facts are presented, there
is no question
that, but for having contacted the TAA and the TAA having intervened on his behalf,
Somalinga would have
been hired by the SSEC in or about the end of April 2002. In this sense, there is a literal
nexus between
Somalinga's and the TAA's protected activity (including the contractual requirements) and
the fact that the
job was withdrawn. In such circumstances, we can well understand the TAA's concern that
the situation
would have a chilling effect on Somalinga's and other bargaining unit members' willingness
to engage in
union activity. That acknowledged, we are nonetheless compelled to conclude, as did the
Examiner, that
UW did not in fact violate the law.

We note that the troublesome nexus is more accurately described thus: but for the
restrictions set
forth in the union contract, which prevented SSEC from employing a graduate student as a
student hourly
when the work is project assistant work and required SSEC to prepare a position description
and post the
position, Somalinga would have been hired by SSEC for the position in question. While the
TAA's
intervention drew the employer's attention to the contractual requirements, and while it was
the contract
that set up the "red tape" that the SSEC wished to avoid, it was avoiding the red tape, not
the contract or
the union, that led the SSEC to withdraw the job offer. The record is clear that the SSEC
had time
sensitive needs to meet. We see nothing in SELRA that requires an employer to offer work
to bargaining
unit members, rather than to less expensive and/or less cumbersome subcontractors, even if
avoiding the
expense or the contractual "hoops" is the motive, unless the contract or a prevailing practice
so requires.
Put another way, if Paulos and Short would not have offered or been required to offer the
job to Somalinga
in the first place, had they realized the applicable restrictions, then SELRA does not compel
them to
maintain the offer simply because they learned of the contractual restrictions subsequently.
The mere fact
that the discovery of the restrictions post-dated union intervention cannot render unlawful
what otherwise
would have been within the employer's legitimate prerogatives.

As UW argues, we have previously confronted a similar analytical dilemma in a
decision under the
Municipal Employment Relations Act (MERA) that is instructive here. 2/ In Clark County,
Dec. No.
30361-B (WERC, 11/03), an employee had been terminated at the conclusion of her
probationary period.
Shortly before her termination, she had engaged in certain vociferous protected activity. The
Examiner had
concluded that the County had not terminated her out of animus toward her protected activity
and
dismissed the (3)(a)3 allegation. However, because the circumstances would lead co-workers
to believe
that she had been

Page 6

Dec. No. 30534-B

terminated for her protected activity, the Examiner held that the County's action
produced a chilling effect
on employees' rights and therefore independently violated (3)(a)1. On review, the
Commission concluded
that in cases "where the essence of the violation lies in the employer's motive for taking
adverse action
against one or more employees," the appropriate prohibited practice analysis would lie in the
four-element
paradigm the Commission applies in (3)(a)3 discrimination cases. "If the circumstances
demonstrate that
the adverse action (e.g., termination, discipline, layoff) was lawfully motivated, we will not
find it unlawful
[as an independent (3)(a)1] simply because it could be perceived as retaliatory." Id. at 15.
We noted that
to do otherwise would go beyond preventing discrimination and ensuring a level playing
field, and would
effectively create a higher standard for union activists than the employer would have to meet
in other
circumstances. Id. In Clark County, for example, under the Examiner's analysis, an
employer who had
complied with all contractual obligations and had fully legitimate reasons for terminating an
employee,
nonetheless would have violated the law simply because other employees misperceived the
situation. 3/
Similarly, in the instant case, if the SSEC's decision to withdraw the job offer was not a
response to the
union activity, but instead a legitimate managerial decision to use less expensive and less
complicated
outside labor sources, then the understandable but mistaken impressions of the TAA and
Somalinga should
not in and of themselves render the action unlawful.

2/ Since the relevant provisions of SELRA
are substantively identical to Secs. 111.70(3)(a)1 and 3,
respectively, of the Municipal Employment Relations Act (MERA), both the Commission and
the Wisconsin
Supreme Court have concluded that it is appropriate to apply precedent arising under
provisions of MERA
to cases arising under similar provisions of SELRA. DER (DOC), Dec. No. 30167-B
(Shaw, 4/02); Aff'd
by Operation of Law, Dec. No. 30167-C (WERC, 5/02), citing State v. WERC, 122 Wis.
2d 132, 143
(1985); AFSCME Council 24 and State of Wisconsin, Dec. No. 29448-C (WERC,
8/00).

3/ In Clark County, the Commission ultimately disagreed with
the Examiner and concluded that the
employee had been terminated out of animus toward her protected activity and hence held
that the County
had violated the law, applying the traditional four-element discrimination analysis of
(3)(a)3.

The TAA argues that Clark County is limited to situations involving disciplinary
action,
which would not encompass the job withdrawal at issue here. However, by its specific
language,
Clark County applies to "adverse action," because those are the situations in which the
essence of the problem would lie in perceived retaliation. Withdrawing a job offer allegedly
in
response to union activity is "adverse action," and hence its lawfulness is properly
determined
under the four-element "motive" analysis traditionally utilized in discrimination cases.
Accordingly, we will not undertake the balancing test traditionally employed in allegations
under
Sec. 111.84(1)a, Stats. (or Sec. 111.70(3)(a)1, Stats.) (weighing the employer

Page 7

Dec. No. 30534-B

interference with protected activity against the employer's legitimate business needs) in
this
case, and we have set aside the Examiner's Conclusion of Law and modified Finding of Fact
pertinent to that analysis.

Turning, then, to the issue of whether UW's action was unlawful discrimination, the
Examiner properly set forth the four elements of a successful claim of that nature: that the
TAA
and Somalinga were engaged in lawful concerted activities; that the relevant agents of the
employer were aware of those activities; that those agents bore animus towards those
activities;
and that they took adverse action (withdrawing the job offer) at least in part out of animus
toward
those activities. Village of Sturtevant, Dec. No. 30378-B (WERC, 11/03) at 18, citing
MUSKEGO-NORWAY C.S.J.S.D. NO. 9 V. WERB, 35 WIS.2D 540 (1961);
EMPLOYMENT RELATIONS
DEPARTMENT V. WERC, 122 WIS.2D 132 (1985). The Examiner concluded and there is
no dispute
that the first element has been satisfied.

As to the second element, the Examiner concluded that UW agents Rothstein and Loy
were aware of Somalinga's resort to the TAA and the TAA's intervention. We have
modified the
pertinent Conclusion of Law to state that Morse, Paulos, and Short were not aware of that
protected activity. As noted in footnote 1, above, the TAA urges us to find that these
individuals
were aware of the protected activity, based upon a series of inferences they would have us
draw.
The TAA disagrees with the Examiner's finding that Morse had not actually discussed the
position withdrawal with Paulos and/or Short and her finding that Morse's comments to
Somalinga
had simply represented Morse's speculation as to those reasons. We believe the record
supports
the Examiner's findings. Morse, Paulos, and Short each denied categorically that Morse had
any
conversation with either of the other two about the reasons the job was withdrawn. Morse's
credibility on this point is somewhat weakened by the inconsistency between his testimony
and
what he told or implied to Somalinga (i.e., first that he would contact the SSEC managers
and
subsequently that he had done so). However, given Paulos' and Short's unequivocal and
generally credible testimony, we conclude that Morse told Somalinga he would contact SSEC
because at that time Morse intended to do so. Later, when Somalinga followed up with
Morse,
Morse apparently preferred not to acknowledge that he had failed to do what he had
promised,
i.e., contact SSEC about the reason, and instead proffered certain reasons, i.e., that
Somalinga
had been too "pushy" or carried too much "overhead." At first blush, these comments seem
consistent with information Morse could have received from Paulos or Short. However, that
conclusion would require a determination that not only Morse, but both Paulos and Short,
testified
falsely. We see nothing in this record to support that view of their testimony. We agree
with the
Examiner that Morse could and apparently did reach his own view of Somalinga's
"pushiness,"
in that the record reflects insistent/persistent behavior by Somalinga, including Somalinga's
several contacts with Morse about the position and why he hadn't gotten it. As to the
"overhead"
comment, Morse plausibly explained that he meant to refer to the tuition reimbursement that
a
project assistant position would have required, when balanced against the short period of time
left
in the semester.

Page 8

Dec. No. 30534-B

Morse could have received these impressions if he had contacted Loy (which he
denied),
since Loy knew that the TAA had intervened on Somalinga's behalf. However, on this
record,
neither Loy's nor Rothstein's knowledge or feelings about Somalinga's protected activity
played
a role in the SSEC decision to withdraw the job offer. There is no evidence that Loy was
involved
in the decision to withdraw the position, that she had discussed the TAA intervention with
Paulos
and/or Short, or that she otherwise knew their reasons for choosing not to post the position.
Moreover, even if we assume arguendo, based on adverse inferences from
UW's failure to call
Loy to testify and Morse's ostensible lack of credibility, that Loy told Morse that the job was
withdrawn because Somalinga and the TAA had pushed too hard, we would still have no
basis to
conclude that Loy's putative assertions would accurately reflect Short's and Paulos' reasons.
Nothing in Short's or Paulos' testimony suggests they discussed their reasons with Loy,
beyond
Short's April 26 e-mail to Loy stating that they had decided to "utilize outside contractors to
maintain schedule," and, as discussed earlier, both credibly denied any knowledge of the
union's
involvement. 4/

4/ The TAA urges us to reach a different
conclusion regarding Short's testimony. They argue that he did not
directly deny knowledge of the TAA's involvement, but instead gave a relatively lengthy and
diffuse response
when asked that question, as compared with his brief and simple "no" to other questions.
Asked whether he
knew anything about the union's involvement, Short's answer was:

"I'm sure that Sally, our personnel,
made reference to groups in her E-mail, but frankly until
recent weeks and months of discussion, I have never paid attention to the different groups,
whether it be APO, which I now understand refers to Academic Personnel Office, TAA, all
of
those terms, the union, all of that is outside of my experience of understanding or, you
know,
having an interest in. And if she didn't make reference to them in an E-mail to me, I'm sure
that
I saw it, but I really didn't care. . . ." (TR 106-07).

The TAA suggests that Short's failure to directly answer "no"
compels the inference that the
answer was really "yes." While such an inference is plausible, we decline to draw it.
Instead
we interpret his answer to reflect a desire to be completely honest so that, if in fact Loy's
e-mail messages had included a reference to the TAA as one of the "groups," or had copied
the
TAA along with other groups, he would not be perceived as misstating the facts. His
response, as a whole, indicates that he took no conscious notice of the TAA's involvement,
albeit there may have been a reference, and this is not sufficient to demonstrate the level of
knowledge that would satisfy the second element of the discrimination
paradigm.

Since the TAA has not met its burden of production regarding the second element of
the paradigm,
we need not discuss the other elements. Nonetheless, we note that the record amply supports
a conclusion
that, even if Short and Paulos were aware that the complications had arisen because
Somalinga had
resorted to the union, their decision to withdraw their offer was not motivated by animus
toward that
protected activity. Short and Paulos had not been seeking to employ anyone to perform the
Auto-CAD
work in question, prior to Somalinga's approach. From the outset, they were reluctant to
utilize a "project
assistant" because of the late point in the semester, even though they knew that Somalinga's
interest was
in a tuition remission that would require project assistant status. They deliberately decided to
constitute the
position as "student

Page 9

Dec. No. 30534-B

hourly" until the end of the term and they, as well as Loy, rejected Somalinga's efforts
to persuade them
to change it to a project assistant position after they had offered it to him and before he had
approached
the union. Accordingly, their subsequent decision to withdraw the offer, once it was clear
that they could
not utilize the relative uncomplicated "student hourly" format, was consistent with their view
of their needs
from the outset. These circumstances would belie any inference of improper motivation,
even if the
elements of knowledge and animus had been established.

Accordingly, for the foregoing reasons, we affirm the Examiner's decision to dismiss
the Complaint.